10 facts about enemy combatants

Some GOP lawmakers are calling for Dzhokhar Tsarnaev, 19, to be tried as an enemy combatant for his suspected role in the Boston Marathon bombings. But the White House on Monday said he will not be. It’s reignited a complicated, contentious debate about how terrorists are tried in courts. Here are 10 facts about enemy combatants:

1. The full term in relation to this case is unlawful enemy combatant. (More on lawful enemy combatants below.) An unlawful enemy combatant is some one authorities believe is connected with a terrorist group, whether through funding or direct orders or association, among other connectors.

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2. So who is a lawful enemy combatant? It’s someone who is commanded by a person person responsible for subordinates, carries arms openly, and conducts their operations in accordance with the laws and customs of war, among other criteria, according to The Third Geneva Convention. They would then have to be treated in accordance with Prisoner of War guidelines in the Geneva Convention of 1949.

3. What’s the difference? Lawful enemy combatants can receive Prisoner of War status in accordance with The Geneva Conventions. Unlawful enemy combatants cannot because terrorist organizations like Al Qaeda are non-state actor terrorist groups, according to The Council on Foreign Relations.

4. The term unlawful enemy combatants flared up in its current context following the Sept. 11, 2001, terrorist attacks. Former President George W. Bush’s administration declared Jose Padilla an unlawful enemy combatant and he was kept in a military prison after being convicted of aiding terrorists in connection with an uncovered dirty bomb plot. Padilla’s case was eventually transferred into civilian court and he himself to a Miami federal prison.

5. President Barack Obama’s administration stopped using the term “enemy combatant” in 2009, in what The New York Times reported at the time was “intended to symbolically separate the new administration from Bush detention policies.”

6. As the commander-in-chief, the president has the authority to determine whether someone is an enemy combatant, according to CFR.

7. Enemy combatants may have their Habeas Corpus rights — the right for anyone imprisoned by America to challenge their imprisonment — suspended. Therefore, they can be imprisoned for an indefinite period of time without being able to challenge it.

8. The Military Commissions Act of 2006 gave the president the authority to set up military commissions to try enemy combatants. The act also states: “No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.” The defendant does not have the right to file Habeas Corpus petitions and can receive the death penalty. It was amended in 2009 in part due to make the law more in line with the Supreme Court.

9. While authorities decide whether an individual should be tried in civilian court or deemed an enemy combatant, the government can use a public safety exception that allows them to question an individual before he or she is notified of their Miranda rights — if they pose a a threat to public safety, as CBS News reported happened to Tsarnaev. In 2011, The New York Times reported that the FBI was instructing its agents not to read Miranda rights to terrorist suspects who posed an immediate threat to public danger.

10. The Supreme Court coined the term in 1942 when it ruled in the case Ex parte Quirinto distinguish between lawful and unlawful enemy combatants : “Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”